# Ram Dhani & Anr v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-18
- **Case number:** Writ C No. 12016 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-dhani-anr-v-state-of-u-p-ors-46126
- **Pages:** 14

## Headnote

(A) Civil Law - U.P. Revenue Code,
2006 - Section 116 - suit for division
of holdings , Section 117 - Duty of
Court in suits for division of holding
- Uttar Pradesh Revenue Code Rules,
2016 - Rule 108 - Suit for division
for several holdings, Rule 109 -
Preliminary and Final decrees - Rule
109 (10) - Sub-Divisional Officer
shall make an endeavour to decide
the suit within the period of six
months and if the suit is not decided
within such period, the reason shall
be recorded - Dispensing justice is
the fundamental raison d'etre of the
judicial system - Justice to be
meaningful has to be delivered in a
relevant
time
frame
-
Delay
invariably defeats justice - ordersheet of the case is equally a
reflection and an indictment of the
judicial process - Court has ample
powers to ensure that the process of
law is not stalled by the dilatory
tactics of any party - Courts are not
helpless and cannot be seen to be
helpless. (Para-9,10,15,30)
Petitioners instituted proceeding under Section
116 of the Uttar Pradesh Revenue Code, 2006
before the learned Sub-Divisional Magistrate -
Suit was instituted for division of holdings of
which the petitioners claim to be co-sharers -
seeking direction in the nature of mandamus for
deciding the suit within stipulatede period -
perusal of the order-sheet shows that the dates
were granted mechanically - No effective
hearing whatsoever took place for almost two
years
since
the
institution
of
the
proceedings.(Para - 3,4)

HELD:- The rule of law cannot be flouted or
permitted to fail . It is the obligation of this
Court to ensure that the rule of law is upheld
under all circumstances - This is a fit case to
exercise the jurisdiction under Article 226 of the
Constitution of India by issuing strict directions
to decide the matter finally within a stipulated
period of time - The authority /learned court
below has failed to perform its statutory duty. In
view of the aforesaid facts, this Court has to
issue a mandamus commanding the authority
/learned court below to discharge its statutory
duty. (Para - 31,32,33)

Writ petition disposed off. (E-6)

List of Cases cited :-

## Text

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76 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)01ILR A76
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 12016 of 2020

Ram Dhani & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Santosh Kumar Singh

Counsel for the Opposite Party:
C.S.C., Sri Sunil Kumar Singh

(A) Civil Law - U.P. Revenue Code,
2006 - Section 116 - suit for division
of holdings , Section 117 - Duty of
Court in suits for division of holding
- Uttar Pradesh Revenue Code Rules,
2016 - Rule 108 - Suit for division
for several holdings, Rule 109 -
Preliminary and Final decrees - Rule
109 (10) - Sub-Divisional Officer
shall make an endeavour to decide
the suit within the period of six
months and if the suit is not decided
within such period, the reason shall
be recorded - Dispensing justice is
the fundamental raison d'etre of the
judicial system - Justice to be
meaningful has to be delivered in a
relevant
time
frame
-
Delay
invariably defeats justice - ordersheet of the case is equally a
reflection and an indictment of the
judicial process - Court has ample
powers to ensure that the process of
law is not stalled by the dilatory
tactics of any party - Courts are not
helpless and cannot be seen to be
helpless. (Para-9,10,15,30)
Petitioners instituted proceeding under Section
116 of the Uttar Pradesh Revenue Code, 2006
before the learned Sub-Divisional Magistrate -
Suit was instituted for division of holdings of
which the petitioners claim to be co-sharers -
seeking direction in the nature of mandamus for
deciding the suit within stipulatede period -
perusal of the order-sheet shows that the dates
were granted mechanically - No effective
hearing whatsoever took place for almost two
years
since
the
institution
of
the
proceedings.(Para - 3,4)

HELD:- The rule of law cannot be flouted or
permitted to fail . It is the obligation of this
Court to ensure that the rule of law is upheld
under all circumstances - This is a fit case to
exercise the jurisdiction under Article 226 of the
Constitution of India by issuing strict directions
to decide the matter finally within a stipulated
period of time - The authority /learned court
below has failed to perform its statutory duty. In
view of the aforesaid facts, this Court has to
issue a mandamus commanding the authority
/learned court below to discharge its statutory
duty. (Para - 31,32,33)

Writ petition disposed off. (E-6)

List of Cases cited :-

1. Haryana Vs. Raghubir Dayal , (1995) 1 SCC
133

2. N.K. Chauhan Vs St. of Guj. & ors. , (1977) 1
SCC 308

3. P.T. Rajan Vs T.P.M. Sahir & ors. , (2003) 8
SCC 498

4. Sharif-Ud-Din Vs.Abdul Gani Lone , (1980) 1
SCC 403

5. Vikas Trivedi Vs St. of U.P. & ors. , (2013) 2
UPLBEC 1193

6. Karnal Improvement Trust, Karnal Vs Smt.
Parkash Wanti (Dead) & anr. , (1995) 5 SCC 159

7. Tribhuwan Prasad Vs Uttar Pradesh Sarkar &
ors. , 2018 (9) ADJ 466.
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
77
8. Matters Under Article 227 No.237 of 2020
(Mrs. Madhuri Saxena (since deceased) through
L.R. Vs Sahkari Awas Evam Vitt Nigam Ltd.
Sarojni Marg Lucknow U.P.)

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Santosh Kumar Singh,
learned counsel for the petitioners, learned
Standing counsel for the respondents No.1
and 2 and Sri Sunil Kumar Singh, learned
counsel for the respondent No.3.

2. The petitioners have prayed for the
following prayer in the instant writ petition:

"To issue a writ, order or
direction in the nature of mandamus
directing the respondent no.2 to decide the
suit no. RST/00213/2018, computer Suit
No. T-201814700200213 (Ram Sanehy Vs.
Lalman) under Section 116 of U.P.
Revenue Code, 2006, within stipulated
period which may be fixed by this Hon'ble
Court."

3.

The
petitioners
instituted
proceeding under Section 116 of the Uttar
Pradesh Revenue Code, 2006 before the
learned Sub-Divisional Magistrate, Pindara,
District-Varanasi, which was registered as
Suit No.429/1125 of 2017 (Ram Sanehi and
others Vs. Lalman and others). The suit
was instituted for division of holdings of
which the petitioners claim to be cosharers.

4. The order-sheet is appended to
the writ petition as Annexure-4. The
order-sheet records the following dates in
the proceedings, namely, 16.04.2018,
10.05.2018,
21.06.2018,
23.07.2018,
24.08.2018,
14.09.2018,
15.10.2018,
14.11.2018,
05.12.2018,
27.12.2018,
29.01.2019,
01.05.2019,
06.06.2019,
01.07.2019,
18.07.2019,
04.09.2019,
17.10.2019,
18.11.2019,
27.11.2019,
13.12.2019, 03.01.2020, 20.06.2020 and
04.07.2020. However, a perusal of the
order-sheet shows that the dates were
granted
mechanically.
No
effective
hearing whatsoever took place for almost
two years since the institution of the
proceedings. The first effective hearing
happened
when
the
order
dated
08.06.2020 was passed by the respondent
No.2-learned Sub-Divisional Magistrate
(Judicial),
Tehsil
Pindra,
DistrictVaranasi.
The
matter
thus
remains
pending before the respondent No.2learned
Sub-Divisional
Magistrate
(Judicial),
Tehsil
Pindra,
DistrictVaranasi. The proceedings have not
moved forward thereafter. Hence, the writ
petition.

5. The proceedings in a suit for
division of holdings is controlled and
guided by the provisions of the Uttar
Pradesh Revenue Code, 2006 read with
Rules framed thereunder.

6. Sections 116 and 117 provide the
statutory backdrop for a suit for division
of holdings. The provisions of Sections
116 and 117 are reproduced hereunder:

"116. Suit
for
division
of
holding.- (1) A bhumidhar may sue for the
division of the holding of which he is a cosharer.

[(2) In every such suit, the Court
may also divide the trees, wells and other
improvements existing on such holding but
where such division is not possible, the
trees, wells
and other improvements
aforesaid and valuation thereof shall be
divided and adjusted in the manner
prescribed.]
78 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) One suit may be instituted for
the division of more holdings than one
where all the parties to the suit other than
the[Gram Panchayat]are jointly interested
in each of the holdings.

(4) To every suit under this
section,
the[Gram
Panchayat]concerned
shall be made a party.

117. Duty of Court in suits for
division of holding.- (1) In every suit for
division of holding under Section 116 the
Court of Assistant Collector shall -

(a) follow such procedure as may
be prescribed;

(b) apportion the land revenue
payable in respect of each such division.

(2) A division of holding referred
to in Section 116 shall not affect the joint
liability of the tenure-holders there of in
respect of the land revenue payable before
the date of the final decree."

7. The relevant Rules material to the
controversy provide for the procedure and
the
time-line
for
conclusion of
the
proceedings are Rules 108 and 109 of the
Uttar Pradesh Revenue Code Rules, 2016.
The said Rules are extracted hereunder:

"108. Suit for division for
several holdings (Section 116).-Where the
suit relates to the division of more than one
holding, the particulars specified in rule
107 shall be mentioned in the plaint in
respect of all such holdings. "

109. Preliminary and Final
decrees (Section 117).-(1) If the plaint
referred to in rule 107 or rule 108 is in
order, it shall be registered as a suit and the
defendants shall be called upon to file their
written statements. The suit shall then be
decided according to the provisions of the
Code of Civil Procedure, 1908.

(2) Before making a division the
court shall-

(a) determine separately the share
of the plaintiff and each of the other cotenure holders ;

(b) record which, if any, of the
co-tenure holders wish to remain joint ; and

(c) make valuation of the holding
(or holdings) in accordance with the circle
rate fixed by the Collector applicable to
each plot in the holding.

(3) If the suit is decreed, the
Court shall pass a preliminary decree
declaring the share of the plaintiff.

(4) After the preparation of
preliminary decree the Sub Divisional
Officer shall get the Kurra prepared
through the Lekhpal.

(5) The Lekhpal shall submit the
Kurra report within a period of one month
from the date of receiving the order in this
regard and at the time of preparation of
Kurra he shall observe the following
principles-

(a) the plot or plots shall be
allotted to each party in proportionate to his
share in the holding;

(b) the portion allotted to each
party shall be as compact as possible;

(c) as far as possible no party
shall be given all the inferior or all the
superior classes of land;

(d) as far as possible existing
fields shall not be split up;

(e) Plots which are in the separate
possession of a tenure holder shall, as far as
possible, be allotted to such tenure holder if
they are not in access of his share;

(f) If the plot or any part thereof
is of commercial value or is adjacent to
road, abadi or any other land of commercial
value, the same shall be allotted to each
tenure holder proportionately and in the
case of second condition the same shall be
allotted proportionately adjacent to road,
abadi or other land of commercial value;
and
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
79

(g) If the co-tenure holders are in
separate possession on the basis of mutual
consent or family settlement, the Kurra
shall, as far as possible, be fixed
accordingly.

(6) When the report regarding
Kurra is submitted by the Lekhpal, the
objection shall be invited thereon and
thereafter the appropriate order shall be
passed by the Sub Divisional Officer after
affording opportunity of hearing to the
parties and considering the objection, if
any, filed against the report submitted by
the Lekhpal.

(7) If the report and Kurra is
confirmed by the Sub Divisional Officer,
the final decree shall follow it.

(8) At the stage of the final
decree, the Court shall-

(a) Separate the share of the
plaintiff from that of the defendant by
metes and bounds.

(b) Place on record a map
showing in different colours the properties
given to plaintiff as distinct from those
given to the defendant.

(c) Apportion the land revenue
payable by the parties.

(d) Direct the record of rights and
map to be corrected accordingly.

(9) If, for adjusting the equities
between
the
parties,
payment
of
compensation regarding trees, wells or
other improvements becomes necessary,
the revenue Court concerned may also pass
necessary orders at the stage of final
decree.

(10) The Sub-Divisional Officer
shall make an endeavour to decide the suit
within the period of six months and if the
suit is not decided within such period, the
reason shall be recorded."

8. The constitutional courts are
cognizant of the problem of delays in our
judicial system. They have consistently
attempted to purge the legal system of this
menace. Various judgments have identified
some of the causes of delays and
appropriate judicial directions have been
issued to address the problem.

9.

Dispensing
justice
is
the
fundamental raison d'etre of the judicial
system. Timely delivery of justice is
indispensable to retaining the faith of the
common man in the justice dispensation
system.

10. The foremost goal set out in the
Preamble of the Constitution, is to secure to
all citizens: Justice, social, economic and
political.

10.1 Justice to be meaningful has
to be delivered in a relevant time frame.
Delay invariably defeats justice. Indefinite
delays are the bane of our judicial system.
Interminable legal proceedings reflect the
apathy of an impersonal system to the
plight of helpless litigants. So long as
timely justice is denied, so long the
constitutional promise of justice will not be
redeemed, and the constitutional mandate
of the judicial system will not be
implemented.

11. The constitutional courts are
seized with, and the legislatures have taken
cognizance of the malaise of delays in the
judicial process. Delays in the judicial
process have earned the displeasure of
constitutional courts, and have evoked the
concern of the legislatures. Law will not
countenance delays in the judicial process.
This is evident from the imperative
directions issued by the constitutional
courts to purge the judicial system of
delays. This will also be apparent from the
timelines set by the legislature to cure the
80 INDIAN LAW REPORTS ALLAHABAD SERIES
mischief of delays in the judicial process.
The judicial system will have to evolve an
ethos to be alert to, and endeavour to
respect timelines created by the legislature.

12. The failure to implement the
statutory mandate can be determined once
the nature of the statutory mandate is
understood. Understanding the nature of
the statutory mandate is essentially an
exercise in interpretation of the statute.

13. The words of a statute are the best
guide to legislative intent. The settled
canons of interpretation of statutes are the
best tools to ascertain the scope of the
statutory duties.

14. The intent of the legislature is
clearly to ensure an expeditious disposal of
the appeal by the appellate authority. The
legislature was clearly aware of the realities
of governance and the limitations of quasi
judicial authorities. In such circumstances,
the legislature was conscious that it may
not be possible to adhere to the letter of a
strict time frame. But it was within the
reach of the appellate authority to comply
with the spirit of deciding the appeal with
dispatch and expedition. The intendment of
the legislature is revealed by the words
employed in the provisions.

15. The legislature has taken a
practical view. The legislature has set
pragmatic standards which are achievable
and not created idealistic goals which are
beyond
reach.
The
realities
of
administration have been balanced with the
ideals of justice.

16. The legislative mandate to the
appellate authority under Rule 109 (10) of
the Uttar Pradesh Revenue Code Rules,
2016 is as under:

"109 (10) The Sub-Divisional
Officer shall make an endeavour to decide
the suit within the period of six months and
if the suit is not decided within such period,
the reason shall be recorded."

17. The word "shall" is indicative of
the mandatory nature of the provision, but
it is not conclusive. The Hon'ble Supreme
Court
considered
the
import
and
consequences of the word "shall" used by
the legislature in different statutes. The
import of the aforesaid provision and the
nature of the statutory duty can be
understood
in
the
legal
setting
of
authorities in point, and settled canons of
interpretation of statutes.

18. The Hon'ble Supreme Court in the
case of State of Haryana Vs. Raghubir
Dayal, reported at (1995) 1 SCC 133,
undertook this exercise and held thus:

"5. The use of the word 'shall' is
ordinarily mandatory but it is sometimes
not so interpreted if the scope of the
enactment, on consequences to flow from
such construction would not so demand.
Normally, the word 'shall' prima facie
ought to be considered mandatory but it is
the function of the Court to ascertain the
real intention of the legislature by a careful
examination of the whole scope of the
statute, the purpose it seeks to serve and the
consequences that would flow from the
construction to be placed thereon. The
word 'shall', therefore, ought to be
construed not according to the language
with which it is clothed but in the context
in which it is used and the purpose it seeks
to serve. The meaning has to be ascribed to
the word 'shall' as mandatory or as
directory, accordingly/Equally, it is settled
law that when a statute is passed for the
purpose of enabling the doing of something
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
81
and prescribes the formalities which are to
be
attended
for
the
purpose,
those
prescribed formalities which are formalities
which are essential to the validity of such
thing, would be mandatory. However, if by
holding them to be mandatory, serious
general inconvenience is caused to innocent
persons or general public, without very
much furthering the object of the Act, the
same would be construed as directory."

15. Clearly the consequences of
using the word "shall" can vary and are not
uniform. The mandatory effect of the word
"shall" can be diluted depending upon the
context in which the word "shall" is
employed and the statutory scheme in
which it is placed. In the context of the
Rule 109(10) of the Uttar Pradesh Revenue
Code Rules, 2016, the word "shall" is also
qualified by the words "as far
as
practicable". The latter words limit the
mandatory effect of the word "shall".

19. The phrase "as far as practicable"
was interpreted by the Hon'ble Supreme
Court in the case of N.K. Chauhan Vs.
State of Gujarat and others, reported at
(1977) 1 SCC 308, the Hon'ble Supreme
Court held thus:

"26. What does 'as far as
practicable' or like expression mean, in
simple anglo-saxon ? Practicable, feasible,
possi- ble, performable, are more or less
interchangeable. A skiagraph of the 1959
Resolution reveals that the revival of the
direct recruitment, method was motivated
by 'the inter- est of administration'--an
overriding object which must cast the
benefit of doubt if two meanings with equal
persuasive- ness contend. Secondly, going
by the text, 50% of the substantive
vacancies occurring in the cadre should be
filled in by selection in accordance With
appended Rules. 'As far as practicable'
finds a place in the Resolution and the
Rule. In the context what does it qualify ?
As far as possible 50% ? That is to say, if
50% is not readily forth- coming, then less
? Within what period should be imprac-
ticabilitv to felt ? What is the content of
impracticabi-
litv'
in
the
given
administrative 'setting ? Contrariwise, can
you not contend that impracticability isnot
a license to deviate, a discretion to disobey
or a liberty with the ratio ? Administrative
tone is too impor- tant to be neglected but if
sufficient numbers to fill the direct recruits'
quota are not readily available, substan-
tive vacancies may be left intact to be filled
up when direct recruits are available. Since
the exigencies of administration cannot
wait, expediency has a limited role through
the use of the words 'as far as practicable'.
Thereby Government is authorised to make
ad hoc appointments by promotion or by
creation of ex cadre posts to be filled up by
promotees, to be absorbed in the 50%
portion falling to the promotional category
in later years. In short 'as far as practicable
means, not interfering with the ratio which
fulfils the interest of administration, but
flexible provision clothing government
with powers to meet special situations
where
the
normal
process
of
the
government Reso- lution cannot flow
smooth. It is a matter of accent and import
which affords the final test in the choice
between the two parallel interpretations.

27. We have given close thought
to the competing contentions and are
inclined to the view that the former is the
better. Certainly, Shri Garg is right that the
primary purpose of the quota system is to
improve administrative efficiency. After
all, the Indian administration is run for the
service of the people and not for
opportunities for promotion to a few
persons.
But
theories
of
public
administration
and
experiments
in
82 INDIAN LAW REPORTS ALLAHABAD SERIES
achieving
efficiency
are
matters
of
governmental
policy
and
business
management. Apparently, the State, having
given due consideration to these factors,
thought that a blended brew would serve
best. Even so, it could not have been the
intention of government to create artificial
situations,
import
legal
fictions
and
complicate the composition of the cadre by
deviating from the natural course. The State
probably intended to bring in fresh talent to
the extent reasonably available but not at
the sacrifice of sufficiency of hands at a
given time nor at the cost of creating a
vacuum by keeping substantive vacancies
unfilled for long. The straightforward
answer seems to us to be that the State, in
tune with the mandate of the rule, must
make serious effort to secure hands to fill
half the number of vacancies from the open
market. If it does not succeed, despite
honest and serious effort, it qualifies for
departure from the rule. If it has become
non-feasible
impracticable
and
procrastinatory to get the requisite quota of
direct recruits, having done all that it could,
it was free to fill the posts by promotion of
suitable hands if the filling up of the
vacancies was administratively necessary
and could not wait. 'Impracticable' cannot
be equated with 'impossible'--nor with
'unpalatable'--and we cannot agree with the
learned judges of the High Court in
construing it as colossally incapable of
compliance. The short test, therefore, is to
find out whether the government, in the
present case, has made effective efforts,
doing all that it reasonably can, to recruit
from the open market necessary numbers of
qualified hands. We do not agree that the
compulsion of the rule goes to the extreme
extent of making government keep the
vacancies in the quota of the direct recruits
open and to meet the urgent needs of
administration by creating ex cadre posts or
making ad hoc appointments or resorting to
other out-of-the-way expedients. The sense
of the rule is that as far as possible the
quota system must be kept up and if not
'practicable', promotees in the place of
direct recruits or direct recruits in the place
of promotees may be inducted applying the
regular procedures, without suffering the
seats to lie indefinitely vacant."

20. In the case of P.T. Rajan Vs.
T.P.M. Sahir and others, reported at
(2003) 8 SCC 498 while considering the
same issue and similar provision, the
Hon'ble Supreme Court held thus:

"48. Furthermore even if the
statute specifies a time for publication of
the electoral roll, the same by itself could
not have been held to be mandatory. Such a
provision would be directory in nature. It is
well-settled pinciple of law that where a
statutory functionary is asked to perform a
statutory duty within the time prescribed
therefor, the same would be directory and
not mandatory."

21. A mandatory provision is required
to be complied with strictly on pain of
invalidation of the action. But merely
because a provision is held to be directory,
it does not provide an option of noncompliance to the authorities. The law has
to be complied with in all circumstances.
This is the essence of the rule of law.
However, the rigors of compliance may
vary
depending
upon
the
statutory
provision. In case of a directory provision,
a substantial compliance of the same would
suffice to meet the ends of law. The
Hon'ble Supreme Court has often dealt with
the distinction between a mandatory
provision and a directory provision, and the
issue of compliance of directory provisions.
The Hon'ble Supreme Court in the case of
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
83
Sharif-Ud-Din Vs. Abdul Gani Lone,
reported (1980) 1 SCC 403 held thus:

"9. The difference between a
mandatory rule and a directory rule is that
while the former must be strictly observed,
in the case of the latter, substantial
compliance may be sufficient to achieve
the object regarding which the rule is
enacted (emphasize added). Certain broad
propositions which can be deduced from
several decisions of courts regarding the
rules of construction that should be
followed
in
determining
whether
a
provision of law is directory or mandatory
may be summarized thus: The fact that the
statute uses the word 'shall' while laying
down a duty is not conclusive on the
question whether it is a mandatory or
directory provision. In order to find out the
true character of the legislation, the Court
has to ascertain the object which the
provision of law in question is to sub-serve
and its design and the context in which it is
enacted. If the object of a law is to be
defeated by non-compliance with it, it has
to be regarded as mandatory. But when a
provision of law relates to the performance
of any public duty and the invalidation of
any act done in disregard of that provision
causes serious prejudice to those for whose
benefit it is enacted and at the same time
who have no control over the performance
of the duty, such provision should be
treated as a directory one. Where however,
a provision of law prescribes that a certain
act has to be done in a particular manner by
a person in order to acquire a right and it is
coupled with another provision which
confers an immunity on another when such
act is not done in that manner, the former
has to be regarded as a mandatory one. A
procedural rule ordinarily should not be
construed as mandatory if the defect in the
act done in pursuance of it can be cured by
permitting appropriate rectification to be
carried out at a subsequent stage unless by
according such permission to rectify the
error later on, another rule would be
contravened. Whenever a statute prescribes
that a particular act is to be done in a
particular manner and also lays down that
failure to comply with the said requirement
leads to a specific consequence, it would be
difficult to hold that the requirement is not
mandatory and the specified consequence
should not follow."

22. A Full Bench of this Court in the
case of Vikas Trivedi Vs. State of U.P. and
others, reported at (2013) 2 UPLBEC
1193 held as under:

"15.
Maxwell
On
the
Interpretation of Statutes (Twelfth Edition)
in Chapter 13,while discussing "Imperative
And Directory Enactments" said following:

'The first such question is: when a
statute requires that something shall be
done, or done in a particular manner or
form, without expressly declaring what
shall
be
the
consequence
of
noncompliance, is the requirement to be
regarded as imperative (or mandatory) or
merely as directory (or permissive)? In
some cases the conditions or forms
prescribed by the Statute have been
regarded as essential to the act or thing
regulated by it, and their omission has been
held fatal to its validity. In others, such
prescriptions have been considered as
merely directory, the neglect of them
involving nothing more than liability to a
penalty, if any were imposed, for breach of
the enactment. An absolute enactment must
be obeyed or fulfilled exactly, but it is
sufficient if a directory enactment be
obeyed or fulfilled substantially.' It is
impossible to lay down any general rule for
determining
whether
a
provision
is
84 INDIAN LAW REPORTS ALLAHABAD SERIES
imperative or directory. 'No universal rule',
said Lord Campbell, L.C., 'can be laid
down for the construction of statutes, as to
whether mandatory enactments shall be
considered directory only or obligatory
with
an
implied
nullification
for
disobedience. It is the duty of Courts of
Justice to try to get at the real intention of
the Legislature by carefully attending to the
whole scope of the statute to be construed.'
And Lord Penzance said: 'I believe as far as
any rule is concerned, you cannot safely go
further than that in each case you must look
to
the
subject
matter;
consider
the
importance of the provisions that has been
disregarded, and the relation of that
provision to the general object intended to
be secured by the Act; and upon a review
of the case in that aspect decide whether
the matter is what is called imperative or
only directory."

"76. At this juncture a note of
caution is required to be given. All
provisions of the statute are required to be
complied with. It is useful to quote
paragraph 5-052 of De-Smith Judicial
Review 6th Edition in which while dealing
with mandatory and directory statutes,
following was observed:-

"5-052. A second reason for the
tangle in this area is the use of the terms
"mandatory" and "directory"; the latter term
is especially misleading. All statutory
requirements are prima facie mandatory.
However, in some situations the violation
of a provision will, in the context of the
statute as a whole and the circumstances of
the particular decision, not violate the
objects
and
purpose
of
the
statute.
Condoning such a breach does not,
however, render the statutory provision
directory or discretionary. The breach of
the particular provision is treated in the
circumstances as not involving a breach of
the statute taken as a whole. Furthermore,
logically, a provision cannot be mandatory
if a court has discretion not to enforce it."

23.

In
the
case
of
Karnal
Improvement Trust, Karnal Vs. Smt.
Parkash Wanti (Dead) and another,
reported at (1995) 5 SCC 159, the Hon'ble
Apex Court laid down the law in the
following terms:

"11. There is distinction between
ministerial acts and statutory or quasijudicial functions under the statute. When
the statute requires that something should
be done or done in a particular manner or
form, without expressly declaring what
shall
be
the
consequence
of
noncompliance, the question often arise: What
intention is to be attributed by inference to
the legislature? It has been repeatedly said
that no particular rule can be laid down in
determining whether the command is to be
considered
as
a
mere
direction
or
mandatory
involving
invalidating
consequences in its disregard. It is
fundamental that it depends on the scope
and object of the enactment. Nullification is
the natural and usual consequence of
disobedience, if the intention is of an
imperative character. The question in the
main is governed by considerations of the
object and purpose of the Act; convenience
and justice and the result that would ensure.
General inconvenience or injustice to
innocent persons or advantage to those
guilty of the neglect, without promoting the
real aim and object of the enactment would
be kept at the back of the mind. The scope
and
purpose
of
the
statute
under
consideration must be regarded as an
integral scheme. The general rule is that an
absolute enactment must be obeyed or
fulfilled exactly but it is sufficient if a
directory enactment be obeyed or fulfilled
substantially. When a public duty, as held
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
85
before, is imposed and statute requires that
is shall be performed in a certain manner or
within a certain time or under other
specified conditions, such prescriptions
may well be regarded as intended to be
directory only in cases when injustice or
inconvenience to others who have no
control over those exercising the duty
would result if such requirements are not
essential and imperative."

24. Rule 109 (10) as extracted above
determines the time frame of the aforesaid
proceedings. The statutory mandate of Rule
109 (10) can be distilled by consideration
of the phraseology employed by the
legislature while enacting the rule, the
settled canons of interpretation of statutes.
Benefit
shall
also
be
derived
from
authorities in point discussed in the
preceding paras.

The word "shall" in Rule 109(10)
is qualified by the word "endeavour". The
mandatory nature of the word "shall" is
also diluted by the phrase "if the suit is not
decided within such period". The time
period provided for deciding the suit for
partition of holdings under Section 116 of
the Uttar Pradesh Revenue Code, 2006 read
with rules, as provided in Rule 109 (10) of
the Uttar Pradesh Revenue Code Rules,
2016 is directory in nature. However, the
requirement
to
record
reasons
for
exceeding the time-line of six months is
mandatory.

25. I had the occasion to consider the
nature of the legislative mandate to the
courts, where directory provisions in a
statute require the courts to render a final
decision in a specified time frame in
Tribhuwan Prasad Vs. Uttar Pradesh
Sarkar and others, reported at 2018 (9)
ADJ 466. In Tribhuwan Prasad (supra)
the time frame provided in the statute for
deciding the appeal was two months.

26. In Tribhuwan Prasad (supra) it
was found that the provision containing a
time frame to decide the appeal was
directory, and then the consequences of the
said holding were construed on the foot of
good authority. The directory nature of the
provision may not require strict adherence
but insists on substantial compliance. Most
pertinently it does not permit indefinite
enlargement of the time fixed by the
statute:

"21. Statutes fixing time-lines to
accomplish an action, as discussed above,
were held to be directory in nature. The
legislative intent was sought to be defeated
by a highly delayed compliance on the
pretext of the provision being directory in
nature. The action of the authorities was
invalidated and such interpretation was
negatived by the Hon'ble Supreme Court.
Inordinate delay does not satisfy the
requirement of substantial compliance of a
directory provision. The Hon'ble Supreme
Court in the case of State of Haryana Vs.
P.C. Wadhwa, IPS, Inspector General of
Police and another, reported at (1987) 2
SCC 602, while laying down the law,
dispelled all such doubts. The relevant parts
of the judgement are being extracted for
ease of reference:

"14. The whole object of the
making and communication of adverse
remarks is to give to the officer concerned
an opportunity to improve his performance,
conduct or character, as the case may. The
adverse remarks should not be understood
in terms of punishment, but really it should
be taken as an advice to the officer
concerned, so that he can act in accordance
with the advice and improve his service
career. The whole object of the making of
86 INDIAN LAW REPORTS ALLAHABAD SERIES
adverse remarks would be lost if they are
communicated to the officer concerned
after an inordinate delay. In the instant
case,
it
was
communicated
to
the
respondent after twenty seven months. It is
true that the provisions of Rules 6, 6A and
7 are directory and not mandatory, but that
does not mean that the directory provisions
need
not
be
complied
with
even
substantially. Such provisions may not be
complied with strictly, and substantial
compliance will be sufficient. But, where
compliance after an inordinate delay would
be against the spirit and object of the
directory provision, such compliance would
not be substantial compliance. In the instant
case, while the provisions of Rules 6, 6A
and 7 require that everything including the
communication of the adverse remarks
should be completed within a period of
seven months, this period cannot be
stretched to twenty seven months, simply
because these Rules are directory, without
serving any purpose consistent with the
spirit and objectives of these Rules. We
need not, however, dilate upon the question
any more and consider whether on the
ground of inordinate and unreasonable
delay, the adverse remarks against the
respondent should be struck down or not,
and suffice it to say that we do not approve
of
the
inordinate
delay
made
in
communicating the adverse remarks to the
respondent."

27. Thereafter, the duties of the court
and the manner of implementation of a
directory provision of law were laid down :

"23. In case the appeal is decided
within two months, the letter and spirit of
the statute is implemented. However, mere
failure to decide the appeal within two
months does not violate the statutory
mandate. In the latter case, the statutory
obligation will be defined by the quality of
the efforts made to decide the appeal with
promptitude and dispatch. The obligation
will be met if the appeal is decided within a
reasonable time, after the expiry of two
months from its institution.

24. Statutes of limitation are
statutes of repose. Statutes with time lines
for decision making are statutes of
endeavour. Statutory duty is discharged not
only when the act is done but also when
effort is made. However, the leeway to the
authority is not unlimited and the time to
accomplish the act is not indefinite. The
statutory duty of the appellate authority, in
the event the appeal is not decided within
two months is to be seen.

25. The appellate authority shall
have
discharged
its
statutory
duties
initially, if it makes efforts commensurate
to decide the appeal expeditiously, and
finally when it enters a judgement, in a
reasonable time after the expiry of two
months.
In
such
circumstances,
the
appellate authority can implement the law,
by making honest endeavours and serious
efforts to decide the appeal with dispatch
and expedition. This is the statutory duty of
the appellate authority. While the statutory
duty of the appellate authority is to make
earnest efforts to decide expeditiously, the
proof of its performance is in the ordersheet of the court. The order-sheet of the
appellate court is the most reliable evidence
of the sincerity or earnestness of the efforts
made by the appellate authority. The ordersheet of the appellate court is true
testimony to the accomplishment of the
statutory duty or the failure of the authority
to perform its statutory duty. In the latter
case
the
authority
is
liable
to
be
mandamused."

28. Similar directory provisions
providing for a time period to conclude
1 All. Ram Dhani & Anr. Vs. State of U.P. & Ors.
87
legal
proceedings
also
exist
in
the
Arbitration Act. The mandate of Section
34(5)(6) of the Arbitration and Conciliation
Act, 1996 came up for consideration before
this Court in Matters Under Article 227
No.237 of 2020 (Mrs. Madhuri Saxena
(since deceased) through L.R. Vs. Sahkari
Awas Evam Vitt Nigam Ltd. Sarojni Marg
Lucknow U.P.) rendered on 14.08.2020.
The duty of the Court to implement a
statutory mandate of Sections 34 and 35 of
the Arbitration and Conciliation Act, 1996
were cast in the following paragraphs:

"40. A composite reading of
Section 34 (5) and (6) of the Arbitration
and Conciliation Act, 1996, the law laid by
the Hon'ble Supreme Court in State of
Bihar and others (supra) and this Court in
Tribhuwan Prasad (supra) yields these
results. Section 34(5) and (6) of the
Arbitration and Conciliation Act, 1996
being directory in nature, prevent the courts
from being rushed into decisions by
breaching fundamental norms of fairness
and justice. The timeline set by the statute,
cannot stampede the courts into passing
orders which cause miscarriage of justice.
However, the courts cannot extend the
statutory
time
frame
indefinitely
or
unreasonably. Neither can the courts be
purblind to the timeframe provided in the
statute on the pretext that provision is
directory. Substantial compliance of the
said provisions is sufficient to satisfy the
legislative
mandate.
What
substantial
compliance entails in regard to these
provisions needs to be understood clearly
to enable the courts to implement the law
faithfully. The duties of the court while
deciding an application under Section 34 of
the Arbitration and Conciliation Act, 1996
are distilled hereinunder.

41. The courts always have to be
alert to the statutory time period of one
year to decide the application, and make
sincere efforts to adhere to the stipulated
time line. In case the application is not
decided within the statutory time limit of
one year, the court should make all out
endeavours to decide it within a reasonable
time frame thereafter. At all times, the
mandate of law requires the court to
proceed with full diligence, and make
earnest
endeavours
to
decide
the
application under Section 34 of the
Arbitration and Conciliation Act, 1996,
within the time prescribed by the statute or
in proximity to it. An unreasonable delay in
deciding the matter represents a failure to
implement the law. If serious efforts to
decide matter within the statutory time
frame is the requirement of the law, the
order-sheet of the court is the most reliable
evidence of the implementation of the law."

29.